P. v. Harper

Filed 8/31/06 P. v. Harper CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Patrick R. Harper appeals a judgment of conviction, contending the trial court abused its discretion during sentencing when it denied his request for a grant of probation. We find no abuse of discretion and affirm.

Background

A Sonoma County deputy sheriff, Officer Gillette, was patrolling the town of Windsor on August 21, 2005. At approximately 1:00 a.m. that Sunday morning, he observed a “dark-colored Jaguar“ exit a gas station at a high rate of speed, such that its rear end lost traction and slid sideways. The Jaguar sped along Shiloh Road for a short distance and entered the northbound lanes of Highway 101, continuing to accelerate. Gillette began to pursue the Jaguar on the highway, activating his emergency lights and siren. Gillette “immediately“ attained speeds in excess of 100 miles per hour in his pursuit. He called for additional units, and two other deputies joined the pursuit in separate vehicles. Deputy Gillette passed the entrance ramp for central Windsor at approximately 120 miles per hour. As the three law enforcement vehicles pursued the Jaguar with their lights and sirens activated, the Jaguar’s driver continued at this high speed along the two-lane northbound stretch of highway, and Gillette observed that it changed lanes without signaling as it weaved past other vehicles. As the Jaguar passed the first exit for Healdsburg, its driver switched off the vehicle’s lights and continued accelerating, eventually exceeding 130 miles per hour. With its lights still off, the Jaguar took the Dry Creek exit into Healdsburg. At the stop sign at the end of the exit ramp, the Jaguar passed a stopped vehicle on the left, ran the stop sign, and turned right onto Dry Creek Road. It turned left onto Grove Street, continuing at a high rate of speed along a winding stretch of that road, and ran a red light as it turned left onto Healdsburg Avenue. Gillette traveled as fast as 90 miles per hour along a winding stretch of Healdsburg Avenue in pursuit of the Jaguar, which continued speeding without lights. Before reaching the intersection of Alexander Valley Road, the Jaguar stopped on the roadway. The driver exited and lay down on his stomach next to the vehicle. Gillette approached the driver, whom he later identified as defendant Harper, and handcuffed and arrested him. The pursuit lasted for about six minutes, and its route was approximately 10.4 miles in length.

As Gillette transported Harper to the county jail, Harper asked Gillette if he had reached 150 miles per hour, and said he was “impressed” that Gillette had been able “to keep up with him.” He also mentioned the Jaguar was specially equipped with “some type of Corvette engine.” Once they reached the jail, Gillette advised Harper of his Miranda^[1] rights, and Harper agreed to waive them. Gillette conducted an interview, during which Harper stated that, once he reached the highway, he knew he was being pursued by law enforcement officers. He saw the emergency lights, although he could not hear the sirens because he “had his music up so loud.” Harper said he nevertheless continued to accelerate because his license had been suspended and he “didn’t want to lose his car.”

Following these events, the district attorney filed an information alleging that Harper had committed a felony violation of Vehicle Code section 2800.2, subdivision (a)--that is, attempting to elude a pursuing peace officer while driving with “willful or wanton disregard for the safety of persons or property.”^[2] The information also alleged a second count, that Harper had committed a misdemeanor by knowingly driving with a suspended license in violation of Vehicle Code section 14601.1, subdivision (a).

These charges were tried before a jury. On November 23, 2005, the jury found Harper guilty on both counts. Prior to this, Harper had been convicted twice of felony charges. The trial court was therefore permitted to grant probation only if it found his case to be “unusual” such that “the interests of justice would best be served” by such a grant. (Pen. Code, § 1203, subd. (e)(4).) At the sentencing hearing, the court concluded Harper’s case was not “unusual.” Accordingly, on January 23, 2006, it denied Harper’s request for probation and imposed the midterm sentence of two years in state prison.

This appeal followed. (§ 1237, subd. (a).)

Discussion

Harper contends that the trial court’s failure to find “unusual” circumstances justifying a grant of probation was an abuse of discretion. He argues that his case was, in fact, unusual because his prior felony convictions were “less serious than usual felonies.” The first was a conviction for grand theft, specifically a theft involving “property . . . taken from the person of another.” (Pen. Code, § 487, subd. (c).) The second was another, prior conviction under Vehicle Code section 2800.2, subdivision (a). Harper characterizes the first conviction as one “akin to a youthful indiscretion“ since he was only 21 years of age at the time and the theft involved taking marijuana plants from a backyard. He also emphasizes that he was granted and successfully completed probation with respect to both of the prior felonies, and that neither prior felony “resulted in injury.”

Harper argues his case was also unusual because he had been “crime free” since the time of his last felony in February 2000, and had been “a productive member of society” with stable employment for the past seven years. He reasons he was also “doing very well in [his] recovery process” until he relapsed a few months before his current offense, and that his prior success with substance abuse treatment indicates he is a good candidate for further treatment. Finally, he points out that he voluntarily stopped his vehicle and surrendered before any actual injury or property damage occurred.

Criminal sentencing is left to the sound discretion of the trial court. We review a decision denying a grant of probation solely for an abuse of discretion, and will not reverse such a decision unless it is arbitrary, capricious, or exceeds the bounds of reason. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Edwards (1976) 18 Cal.3d 796, 807.) A defendant has the burden of demonstrating clearly that the denial was irrational or arbitrary. (People v. Cazares (1987) 190 Cal.App.3d 833, 837.) A determination that a case is not “unusual” under Penal Code section 1203 is subject to the same standard of review. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)

Here the sentencing court heard the evidence presented to the jury, and indicated that it had considered not only the probation department’s report and recommendation, but also Harper’s request for probation and statement in mitigation. It commented to Harper that it had “spent a lot of time thinking about [his] case . . . .” While it concluded Harper’s case did not present “unusual circumstances” justifying a grant of probation, it did agree that he “eventually pulled over.” This conduct, as well as his successful completion of probation in the past, were factors that justified the imposition of a midterm sentence, as opposed to the upper term sentence which the probation department had recommended and the prosecution had urged.

The factors Harper has cited do not demonstrate that this decision was irrational or arbitrary. The circumstances of Harper’s first prior conviction, for grand theft, do not suggest a mere “youthful indiscretion,” at least to the extent that they involved his planning and participation in a theft that included a codefendant’s discharge of a firearm in the victim’s direction. Furthermore, his second prior conviction was for the same type of felony violation as his current conviction. A case involving prior felonies may be deemed “unusual” so as to avoid the probation limitation of section 1203, subdivision (e)(4), only when the prior felonies are “substantially less serious” than those typically giving rise to this limitation on probation, and when the defendant “has no recent record of committing similar crimes or crimes of violence.” (Cal. Rules of Court, rule 4.413(c)(1)(i), italics added.)

Harper’s characterization of his culpability also falls short of clearly showing an abuse of discretion. A defendant who has been “free from incarceration and serious violation of the law for a substantial time before the current offense” may present an “unusual” case for purposes of Penal Code section 1203, subdivision (e)(4) only when his or her current conviction is also “less serious than [the] prior felony conviction[s].” (Cal. Rules of Court, rule 4.413(c)(1)(ii).) That is not the case here.

We conclude there was no abuse of discretion in the court’s determination that Harper’s case was not “unusual” so as to overcome the statutory limitation on probation set out in Penal Code section 1203, subdivision (e)(4).

Disposition

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

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^[1] See Miranda v. Arizona (1966) 384 U.S. 436.

^[2] A “willful or wanton disregard for . . . safety” is defined to include driving that involves three or more traffic violations. (Veh. Code, § 2800.2, subd. (b).)